If dealing with the harsh penalties doled out in criminal court for DUI convictions weren’t enough, consider the proverbial “salt in the wound” that is added from the noncriminal side. That’s where the Bureau of Administrative Reviews comes into play and not only creates an additional headache for many clients, but a lot of confusion for lawyers.
Pursuant to Section 322.2615, Florida Statutes, DMV administratively suspends a person’s license for either refusing a breath, blood, or urine test or for registering a blood or breath alcohol level over the legal limit. The length of the suspension is dependent on a variety of factors. A first-time refusal will result in a 12-month suspension, while a person who blows over the legal limit for the first time will receive a six-month suspension. In both cases, the first-time offender can waive the right to a formal review and immediately apply for a business/hardship license. However, these drivers will have a permanent entry on their driving records regarding the DUI suspension regardless of how the criminal case is resolved.
Those who request a formal review hearing will suffer 30-90 days of what is referred to as “hard time” where they cannot drive for any reason should the suspension be upheld after the hearing. This group is afforded a business purpose license in the interim while the proceedings are pending. They can then apply for a business purposes license once the hard time is over for the remaining months of the administrative suspension. Should they win the formal review hearing (don’t hold your breath), then they receive a fully reinstated license and the entry regarding the DUI administrative suspension is removed from their driving record.
If a person refuses one of these tests for a second time, they will not be eligible for a hardship if the suspension is upheld and will suffer 18 months of no driving. What many people don’t realize is that this punishment is handed down and remains even if the state drops the DUI charges in the criminal case. The only exception is where the person submits to a breath test and is found not guilty at trial.
AN ODD PROCEDURE
Unlike many other administrative tribunals, formal review hearings held at the Bureau of Administrative reviews are presided over by non-lawyer hearing officers. Not only are these hearing officers tasked with determining what subpoenas will be permitted, but they are required to adjudicate Fourth Amendment issues raised by the attorneys involving the lawfulness of the stop, detention, and/or the arrest. The hearsay rule is non-existent at these hearings and hearing officers are essentially permitted to admit any document that they deem relevant. It has been estimated by DMV that 95 percent of these administrative suspensions have been sustained.
The only way for a person to have an actual Judge review the case is to take an appeal from a ruling sustaining the suspension. Such an “appeal” is made by way of a petition for writ of certiorari filed in the circuit court. The Office of General Counsel, Department of Highway Safety & Motor Vehicles are charged with the duty of defending the hearing officer’s rulings before the circuit court.
Many courts, including the Florida Supreme Court have been critical of the way the Bureau of Administrative Reviews handles the formal review hearing process.
“However, this Court and others have voiced concerns with fairness and due process specifically in the context of hearings held before the Department hearing officers under section 322.2615.” Wiggins v. DHSMV, 209 So.3d 1165 (Fla. 2017). Although a recent internal review study at the Bureau recommended substantive changes such as requiring hearing officers to have law degrees, any such changes may take years to implement.
Attorneys taking on DUI clients must grasp the inner workings of the civil side of the case to adequately assist the client in dealing with the administrative suspension. The importance of this increases with clients with CDLs and those with priors. For many criminal lawyers learning these peculiar procedures and the Florida Adminis t r a – tive Code may seem daunting, but it is a must.